CCT29/10

[2011] ZACC 13

2011 (8) BCLR 761 (CC)

Nkabinde J

31 August 2010; 25 November 2010

11 April 2011

http://hdl.handle.net/20.500.12144/3615

Application for leave to appeal against the decision of the KwaZulu-Natal High Court, Pietermaritzburg: Ahmed Asruff Essay N.O. and Eight Others v The MEC for Education KwaZulu-Natal and Four Others, Case No. 10230/2008, KwaZulu-Natal High Court, Pietermarizburg, 16 September 2009, unreported.

Application for leave to appeal against the judgment of the High Court which had authorised the eviction of learners and teachers of a public school operating from a privately owned property. The issue was whether the owner, in enforcing its rights to property under section 25 of the Constitution, had a negative duty not to impede on the learners' right to a basic education; also whether, in granting the eviction order, the High Court took into consideration the impact its order would have on the learners' right to a basic education; and whether it applied the constitutional standard that requires that, in any matter involving a child, the best interests of a child are of paramount importance. The Court ordered the parties to negotiate meaningfully with each other and if the negotiations failed, the Member of the Executive Council for Education in KwaZulu-Natal (MEC), had to submit information before this Court setting out that, should the school be closed, the learners will continue to receive their basic education in other suitable schools. The negotiations were unsuccessful. As a result, the owner of the property applied for an eviction order and the MEC furnished the Court with information that suitable arrangements had been made for alternative placement of the learners for continuation of their education. Before granting the eviction order in favour of the owner, the Court held that the owner had a constitutional duty not to impede on the learners' right to a basic education in terms of section 8 of the Constitution and that in considering the eviction application the High Court should have properly considered the best interests of the learners and their right to a basic education. Judgment: Nkabinde J (unanimous).